Third judge to hear Balala, Cortec Mining dispute in a week

A third judge is set to hear a dispute between Cortec Mining Kenya and Cabinet secretary Najib Balala after Justice David Majanja disqualified himself last week before giving a verdict.

On Monday, the case was mentioned by Lady Justice Mumbi Ngugi who directed that it be heard on Wednesday before Justice Weldon Korir of the Judicial Review Department.

“This being a judicial review matter it must be handled by a judge in that division,” Justice Ngugi told the lawyers on Monday.

Cortec lawyer Nelson Havi said: ‘‘It is surprising that a simple case where a judge ought to have granted leave or refuse the same is being tossed up and down.’’

The lawyer said they had finished presenting their arguments before Justice Majanja before he disqualified himself and he was set to rule whether Cortec will be granted permission to commence a substantive case against Mr Balala and the Attorney-General Githu Muigai over the decision to cancel its mining licence on August 5.

READ: Balala cracks the whip on mining companies

Justice Ngugi ordered the lawyers to appear before Justice Korir for further directions.

On Friday, High Court Judge Majanja told the lawyers who turned for the ruling that the matter would be handled by another judge.

“Due to issues that cropped up on August 21, I recuse myself due to personal reasons,” said Judge Majanja.

He did not elaborate on the nature of circumstances which led him to quit the case.

READ: Justice Majanja steps down from Cortec case

Judge Majanja had allowed three government departments and a private company to join the suit. He allowed the Kenya Forest Services, the National Museums, the National Environmental Management Authority (Nema) and Basu Mining Limited to join the case.

The new parties urged the court to reject the application by Cortec, saying “it was relying on an illegal licence that was obtained through misrepresentations long before it was registered at the Attorney General Chambers.”

Mr Balala set up a task force that will among other things review all the agreements and licences to prospecting, exploring and mining issued between January 2013 and May 2013 to check their legality and establish whether due procedure was followed in issuance.

The task force comprises lawyer Mohammed Nyaoga (chairman), Elizabeth Chemutai Rotich, Ferhan Chaudri, Nawali Salim, Caroline Armstrong, Erastus Lokaale and Hassan Hussein.

The task force is expected to hand its report to Mr Balala on or before October 30, 2013. The Attorney-General had prepared an opinion over the mining industry which he presented to the Mining secretary before the cancellation of the licence.

Cortec said Mr Balala failed to take into consideration its legitimate expectation and the heavy investment it had put in the prospecting of mining resources.

It said the decision to cancel its special mining licence is unlawful and that it stands to lose investments worth $600 billion (Sh53 trillion).

The company says it had obtained approvals from Nema to undertake mining works at a cost of Sh13 million.

But Nema told the judge it did not grant the licences to Cortec to prospect and mine at Mrima Hills in Kwale County.

Mr Balala through lawyer Issa Mansur had said Cortec “obtained a special mining licence on July 15, 2007 when the company had not been incorporated.”